UK - Court of Appeal , Kadri, R (on the application of) v Birmingham, City Council & Anor, [2012] EWCA Civ 1432

Country of Decision:
Country of Applicant:
Date of Decision:
07-11-2012
Citation:
[2012] EWCA Civ 1432
Additional Citation:
[2013] 1 WLR 1755; [2013] 1 All ER 945; [2013] 1 FCR 153; [2013] HLR 4; [2012] WLR(D) 316
Court Name:
Court of Appeal
Relevant Legislative Provisions:
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01
European Union Law > Treaty on the Functioning of the European Union 2010/C 83/01 > EN - Treaty on the Functioning of the European Union 2010/C 83/01 - Art 288
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 4
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 17 > Art 17.6
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 38
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39 > Art 39.1 (a)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39 > Art 39.1 (e)
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.2
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 4 > Art 4.3
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 29
European Union Law > EN - Qualification Directive, Directive 2004/83/EC of 29 April 2004 > Art 30
National / Other Legislative Provisions:
UK - Children Act 1989 - Section 20
UK - Immigration Rules - 339c
UK - Immigration Rules
UK - Nationality, Immigration and Asylum Act 2002, Section 83
UK - Nationality
Immigration and Asylum Act 2002
Section 82
Section 85
Section 86
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Headnote: 

In this case the applicants argued unsuccessfully that the decision of the UK designated authority for determining asylum claims (the Secretary of State for the Home Department) regarding an applicant’s age should be accepted by other government bodies.

Facts: 

Of the four applicants, three were from Afghanistan and one was from Iran. All four claimed that they were children (under 18) and the UK government disputed their age. The applicants’ ages were assessed by UK immigration services, by the local authority, Birmingham City Council (“Birmingham”), and in some cases also by immigration judges. This led to inconsistencies: immigration judges ruled that three of the applicants were children, despite the fact that Birmingham had decided they were adults.

Part of this appeal concerned whether, as a matter of EU law, a local authority is bound to accept the decision of the Secretary of State for the Home Department (“SSHD”), the UK government authority responsible for determining asylum applications (or on appeal, the decision of an immigration judge) as to the age of an individual. 

Decision & Reasoning: 

The applicants argued that where the SSHD determines that a person is a child applicant for asylum or an unaccompanied child refugee, it is a requirement of EU law that all other government or state bodies are bound by the decision and must treat him as a child. They argued this was compelled by a proper construction of the three main asylum Directives read as a whole. In particular, they argued that the system contravenes the ‘principle of effectiveness’ if it requires an applicant to prove he is a child for the purposes of receiving the benefits prescribed by the Directives, when he has already been held to be a child by the authority designated for the determination of asylum applications. It is unfair and oppressive to subject the child to multiple decision making processes.

The Court did not agree.  It held that the principle of effectiveness is breached only if the exercise of the rights conferred by Community law is rendered ‘virtually impossible or excessively difficult’. This is a high hurdle; Member States enjoy a significant ‘margin of appreciation’ in determining the methods they employ to implement a Directive. The Court did not accept that the requirement that an applicant must prove that he is a child on the balance of probabilities if he is to enjoy the benefits contained in the Directives makes the exercise of those rights virtually impossible or excessively difficult.

Outcome: 

Appeals dismissed

Subsequent Proceedings : 

The UK Supreme Court refused permission to appeal

Other sources cited: 

Joint working protocol of November 2005 between the Immigration and Nationality Directorate of the Home Office and the Association of Directors of Social Services for the United Kingdom Local Government and Statutory Childcare Agencies “to support a co-operative approach to age assessment between the Immigration and Nationality Directorate … and the [local authorities]”.

Case Law Cited: 

UK - Domestic Case Law Cited R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin), [2011] PTSR 269 R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557 R (Z) v Croydon London Borough Council [2011] EWCA Civ 59, [2011] PTSR 74

UK - R (A) v Croydon London Borough Council [2009] UKSC 8, [2009] 1 WLR 2557

UK - R (PM) v Hertfordshire County Council [2010] EWHC 2056 (Admin), [2011] PTSR 269

UK - Marks and Spencer Plc v Customs and Excise [2003] QB 866